ALTERNATIVE DISPUTE RESOLUTION IN THE AGE OF COVID-19

By: Honorable Elizabeth Bonina, J.S.C. (Ret.) | March 2020

On March 13, 2020, Chief Administrative Judge Lawrence K. Marks announced measures relating to court proceedings in an effort to limit large public gatherings throughout the state.  Those measures include the following:  (a) suspending the jury selection process in civil and criminal matters until further notice; (b) suspending Civil Trial Assignment Parts until further notice;  (c) all motions in civil matters will be taken on submission and (d) remote appearances will be directed through Skype or by telephone.

In light of the current state of events, Alternative Dispute Resolution may be the only way to resolve cases in the foreseeable future.  With many law firms and insurance carriers permitting staff to work from home, and social distancing becoming the “new normal,” it is vital that the legal community embrace technology in order to continue functioning. 

With the jury selection process in civil matters suspended until further notice, parties to a lawsuit may wish to consider arbitration, with either a single arbitrator or with a tri-panel.  A tri-panel arbitration is heard and decided by three arbitrators, with one arbitrator chosen by the plaintiff, one arbitrator chosen by the defense, and the third arbitrator chosen by either the plaintiff and defense together or by the two already-chosen arbitrators.  A tri-panel allows for deliberations by the three arbitrators, who issue a joint decision.  Since expert witness testimony is not required in an arbitration, this form of alternative dispute resolution saves costs associated with a traditional trial and will enable law firms and their clients the ability to close files in a timely manner. 

NAM (National Arbitration and Mediation) has state-of-the-art technology that enables video and telephonic conferencing for arbitration and mediation hearings.  This technology allows multiple participants to engage with fully trained Neutrals in group settings, as well as “virtual” private break- out rooms for party caucusing. Clients can participate using a desktop, laptop, iPad, Surface Pro, and/or cell phone.   

In order to streamline the process, and in keeping with social distancing practices, parties should have the option of providing electronic submissions for arbitrations and mediations.  Some neutrals, including myself, prefer that papers be submitted electronically.  Not only is it more secure, expedient, and cost-effective to deliver attachments electronically, it allows paralegals and attorneys to work remotely, and avoid a trip to the post office or an overnight delivery service.  This, in turn, limits the risk of exposure to COVID-19, commonly referred to as the novel corona virus.   

In addition to technology making it possible to hear cases remotely, and submit case documents electronically, the advent of mobile applications to enhance the ADR process represents a critical turning point in how legal proceedings are managed. 

Mobile applications, such as NAM's myADR® mobile app, provide parties with secure, instant access to critical case-related data and information in real-time, on any mobile device.  Parties can electronically sign ADR contracts, receive case decisions as soon as they are available, receive automated case confirmations two days prior to a scheduled case, view their schedule of upcoming hearings, review the status of all pending cases, and have access to post-mediation agreements and decisions.  Through this application, clients have access to all roster and hearing officer profiles and have the capability to submit new cases.  Technological innovation has made it possible for the mobile attorney to practice law and access important case-related information from anywhere at any time.  

NAM is fully functional during this time, and stands ready to assist clients with maintaining their business operations and fulfilling their day-to-day ADR needs.  Additionally, NAM has a dedicated, exclusive “virtual” panel of nationally recognized arbitrators and mediators who are able to hear cases with participants located anywhere throughout the United States.   

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Hon. Elizabeth Bonina is a retired Justice of the Supreme Court, Kings County.  She is a member of NAM's (National Arbitration and Mediation) Hearing Officer Panel, and is available to hear arbitrations and mediations throughout the New York Metro area.  In 2019, for the seventh year in a row, Judge Bonina was voted a best individual arbitrator in New York State by the New York Law Journal Reader Rankings Survey, with three of those years being voted #1.  She has also been ranked a Top Ten Mediator in the state for ten consecutive years.  Additionally, Judge Bonina is an Adjunct Professor of Business Law, Sports Law, and Principles of Insurance at St. Joseph's College in Brooklyn, New York. 

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For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at jsilvey@namadr.com or direct dial telephone at 516-941-3228